What legal implications arise after Indiana approves an abortion ban?
A MARTINEZ, HOST:
For the first time since Roe v. Wade was overturned, a state has passed a new law restricting abortions. It's Indiana, and it takes effect September 15. Here to talk through the implications and whether other states may follow, I'm joined by New York University legal scholar Melissa Murray.
Let's start off with the implications this bill might have on a national level.
MELISSA MURRAY: Well, Indiana will certainly invite other laws in other states - laws that are restrictive. The Indiana law does provide for an exception for emergency care and for the health of the mother. But it doesn't really define what constitutes an emergency. And that really has been the issue as these laws have taken effect after the Dobbs decision - trying to determine where medical judgment ends and the law begins. And I think we'll see that kind of confusion throughout the country.
MARTINEZ: Considering the exception you just mentioned, is it not as extreme as some of the other laws that we have seen on the books lately?
MURRAY: Well, again, extreme is a relative...
MURRAY: ...Term here. It does provide for an exception, but it doesn't really provide much guidance for what constitutes an exigent circumstance that would allow for abortions. And the Indiana law also provides for a very Byzantine process for actually determining whether an abortion is appropriate and necessary. And so in those cases, it still makes access to lifesaving care very difficult in an exigent circumstance.
MARTINEZ: Now, Professor, voters in Kansas recently voted to protect abortion by a wide margin, actually. Why such a contrast between the legislative process in Indiana and the ballot initiative in another state - a red state - in Kansas?
MURRAY: Well, I think that's the difference between direct democracy and representative democracy. In Indiana, the voters' preferences were translated through the single vote of their representative in the state legislature, which misses a lot of nuance. In Kansas, individual voters could go directly to the ballot box, and they could register their preferences. And even in ruby-red Kansas, where there are likely a lot of voters who are pro-life, there may be some section of that pro-life constituency who may have viewed what has happened in the country since the Dobbs decision as far too extreme even for their preferences. That kind of nuance likely could not be translated in a representative format in the Indiana state legislature.
MARTINEZ: Do you possibly foresee other states following Indiana's lead?
MURRAY: Well, I think Indiana's lead is the more likely prospect. Many states don't have the mechanisms for ballot initiatives in the way that Kansas does. So that kind of direct participation isn't available there. And even that kind of direct participation can be subject to democratic distortion. In Kansas, it was the state legislature that put the amendment to the people. And they did so in the August primary for the purpose of turning out more Republican voters who would likely vote pro-choice - or pro-life. In Indiana, I think we're going to see more states following that model because representative government is really the model that we have. And I think we'll likely see more extreme laws being passed.
MARTINEZ: So the Supreme Court could be allowing this to expand in the future.
MURRAY: Well, they've actually encouraged it. The majority opinion in Dobbs said that this issue would be returned to the states, where the people, through their state legislatures, could determine this question for themselves. So it is an exact invitation to the state legislatures to do just that.
MARTINEZ: Eli Lilly is a pharmaceutical company based in Indianapolis - a big employer in Indiana. And they say now that they're going to plan for employment growth outside of the state. They're going to have trouble, they think, to attract employees to Indiana. Does this kind of corporate pushback make a difference?
MURRAY: I think it does. This - what I call soft law is something that we've seen in other contexts. Think, for example, of marriage equality. For many years, way before states permitted same-sex marriage or even domestic partnership, it was corporate interests who provided for same-sex couples to bring their partners on to employee benefits programs and things of that nature. And they basically normalized this idea that same-sex unions were OK and paved the way for the states to eventually do that. So again, here, this may be important leverage - the corporate interests saying that they're going to leave the state or provide for expansion of their business elsewhere.
MARTINEZ: Briefly, can abortion rights supporters stop the ban in Indiana from going into effect September 15?
MURRAY: I think the law will certainly be challenged by reproductive rights groups. I don't know if it's likely to be struck down by the state courts or by federal courts. But what that challenge will likely do is delay the process of this law going into effect on September 15.
MARTINEZ: That's Melissa Murray. She's a law professor at NYU.
MURRAY: Thank you.
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